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Petitioner: MUHAMMAD SIDDIQUE VS Respondent: THE STATE
1997 PCr
1997 PCr.LJ 484
[Lahore]
Before Abdul Hafeez Cheema and Muhammad Islam Bhatti, JJ
MUHAMMAD SIDDIQUE and another---Appellants
Versus
THE STATE ---Respondent
Criminal Appeals Nos. 19, 20 and Murder Reference No. 15 of 1994/BWP, heard on13th May, 1996.
(a) Penal Code (XLV of 1860)---
----Ss. 302/ 120-B/ 149 & 148---Criminal Procedure Code (V of 1898), S.154-- Appreciation of evidence ---F.I.R. having not been recorded after deliberations and preliminary investigation, was a good piece of corroborative evidence-- Ocular evidence was reliable---Accused had .a motive for the commission of the offence---Recoveries of weapons of offence effected from the accused when considered alongwith ocular evidence and medical evidence connected them with the murder of the deceased---Conviction of accused under S.302/34, P.P.C. was consequently maintained.
(b) Penal Code (XLV of 1860)---
----S. 302/34--Sentence-=-Mitigating circumstance---Accused had killed the deceased in order to vindicate the family honour which made them deserve the lesser penalty----Sentence of death awarded to accused was altered to imprisonment for life accordingly.
Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 and Muhammad Afzal v. The State and another 1987 SCMR 1864 ref.
(c) Penal Code (XLV of 1860)---
----Ss. 302/120-13/149 & 148---Appreciation of evidence---One accused though allegedly armed with a Danda/Soti, did not use the same at the time of occurrence, nor did the medical evidence show any such injury on the body of the deceased---Other accused who belonged to a different village and was not related to co-accused and thus had no occasion to join hands with them in killing the deceased---Evidence regarding the participation of the third accused in the commission of offence was also lacking and the same did not link him with any conspiracy hatched with co-accused---Accused was acquitted on benefit of doubt in circumstances.
Sardar Ahmad Khan and Ch. M. Ashraf Akhtar for Appellants.
Mohsan Raza Joya for the State.
Malik M. Farrukh Mahmood for the Complainant.
Dates of hearing: 28th November; 5th December; 1995, 6th, 9th' and 13th May, 1996.
JUDGMENT
MUHAMMAD ISLAM BHATTI, J.--- Muhammad Siddique son of Sher Muhammad (62/63), Abdul Hakeem son of Amir Din (60), his brother Abdul Ghafoor (4.0), Muhammad-Rafiq son of Abdul Aziz (30) all Chohan by caste, Muhammad Nawaz son of Muhammad Bakhsh (40), Khoja by caste, all the five residents of Village Ahmadpur and Allah Din son of Imam Din Chohan (55) resident of Mauza gaghban, Tehsil Khairpur, District Bahawalpur faced trial in case F.I.R. No.229/91 registered at Police Station Khairpur Tamewali on 2-9-1991 under section 148/302/149/120-B, P.P.C. on the allegations that on the night between 1/2-9-1991 in the area of Village Ahmadpur, situate within the limits of Police Station Khairpur Tamewali, Muhammad. Siddique, Abdul Hakeem, Abdul Ghafoor, Muhammad Rafiq and Allah Din while armed with lethal weapons former an unlawful assembly with the common object of causing death of Mazhar Hussain .(20) son of Nazir Hussain complainant resident of Mauza Chandrani and at the same time and - place all the five of them in prosecution of the common object of the said unlawful assembly committed the murder of Mazhar Hussain by firing, at him and inflicting hatchet blows, after Muhammad Nawaz son of Muhammad Bakhsh accused had deceitfully decoyed Mazhar Hussain deceased to the house of Muhammad Siddique, with intent to cause his death in pursuance of criminal conspiracy hatched by him with his co- accused, to which charge they pleaded not guilty. The prosecution examined as many as 14 P.Ws. besides production of the report of Chemical Examiner and that of the Serologist in the statement of the D.D.A. to establish their guilt: All the accused 'were then examined under section 342, Cr.P.C. Muhammad Siddique accused produced in his defence Allah Bachaya a stamp-vendor as D.W. while Abdul Hakeem accused produced certain documents in his own statement.
2. It was on the basis of this evidence that the learned Additional Sessions Judge, Bahawalpur held all the six accused guilty of the offences under section 302/120-13/149, P.P.C. All pf them except Muhammad Nawaz were also found guilty under section 148, P.P.C. He convicted Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq under section 302/120-13/149, P.P.C. and sentenced them to suffer death. He also convicted them all under section 148, P.P.C. and sentenced them to suffer R.I. for a period of three years each. He convicted Abdul Ghafoor and Muhammad Nawaz accused under sections 302/120-B and 149, P.P.C: and sentenced them to suffer life imprisonment, keeping in view the nature of the roles assigned to and proved against them. He also convicted Abdul Ghafoor accused under section 148, P.P.C. and sentenced him to undergo imprisonment for a period of three years. All the six accused were also sentenced to pay fine of Rs.20,000 each and in default in the payment of this fine, each one of them had to suffer further R.I. for a period of one year. They were also ordered to pay Rs.20,000 each as compensation under section 544-A, Cr.P.C. to the heirs of the deceased in default of which, each one of them had to further undergo R.I. for one year. Benefit of section 382-B, Cr.P.C. was ordered to be given to all the accused if death sentences of Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq were not confirmed and to Abdul Ghafoor and Muhammad Nawaz accused in case of confirmation of the death sentences aforesaid. All the sentences were also directed to run concurrently.
3. Muhammad Siddique, Muhammad Rafiq and Allah Din have challenged their conviction and sentences by preferring an Appeal (No.19 of 1994). Similarly Abdul Hakeem, Abdul Ghafoor and Muhammad Nawaz have assailed their conviction and sentences by filing Criminal Appeal No.20 of 1994. Murder Reference No.15 of 1994/BWP seeks confirmation of death sentences awarded to Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq. Both the Criminal Appeals and the Murder Reference are being disposed of by this judgment.
4. It may be mentioned here that the occurrence in the present case took place at about 1-00 a.m.' on the night between 1/2-9-1991 at a Kacha road, the site of occurrence being at a distance of six Karams from the main gate of the residential house of Muhammad Siddique accused and half a Karam from the outer wall of the said house as per Exh. P.B. (the site plan prepared by the Patwari), situated at a distance of 8 k.m. from the police station, in the area of Village Ahmadpur towards its north and the same was allegedly recorded at 2-30 a.m. vide Rapat No.37, dated 2-9-1991 on the statement of Nazir Hussain Shah father of the deceased (copy Exh.P.E.), by Madad Hussain I./S.H.O. of the said police station.
5. Nazir Hussain narrated the occurrence in Exh. P.E. as follows:--
"I am the resident of Basti Aara Mauza Chandrani and work as a tube-well operator with Sh. Abdul Rahim Zamindar of village Syed Imam Shah. My son Mazhar Hussain remained employed as a tractor driver with Muhammad Siddique son of Sher Muhammad caste Chohan, resident of Araywali Village Ahmadpur, about one year back. During this period, suspecting that Mazhar Hussain had illicit relations with his daughter Mst. Jamila, Muhammad Siddique accused removed him from service and was then after taking his life. Today at about Isha Wela, to came back to my house and found that Mazhar Hussain was not available therein. My wife Mst. Allah Wasai and daughter-in-law Mst. Kausar Mai wife of Mazhar Hussain told me that only some time back, Muhammad Nawaz son of Muhammad Bakhsh Khoja resident of Ahmadpur had taken him out. Since Mazhar Hussain did not turn up till midnight, I got extremely worried thinking that Muhammad Nawaz, aforesaid being an employee and very special man of Muhammad Siddique, might not get him killed by Muhammad Siddique deceitfully. I, therefore, got out of my house for inquiring about my son Mazhar Hussain from the house of Muhammad Nawaz. Meanwhile I came across Riaz Ahmad son of Ghulam Farid, caste Sipra, resident of Mauza Syed Imam Shah, an employee of Sh. Abdul Rahim, who was then riding a motor-cycle. He told me that the tube-well at the Factory had gone out of order and as such I should accompany him and set it right. I told Riaz Ahmad about my upsetness and then accompanied him on his motor-cycle to the house of Mehr Allah Dewaya son of Allah Bakhsh Arain, a Zamindar and neighbourer. I told him about my upsetness to Mehr Allah Dewaya also hereafter all the three of us went to the house of Muhammad Nawaz in order to inquire about Mazhar Hussain. Muhammad Nawaz was not present at his house. This added to my upsetness. I, therefore, accompanied by Riaz Ahmad and Mehr Allah Dewaya, left for the Basti of Muhammad Siddique by riding over the said motor-cycle. We reached near the house of Muhammad Siddique at about 1-00 p.m. where I saw, in the light of motor-cycle, Muhammad Siddique armed with hatchet Muhammad Raft son of Abdul Aziz armed with a pistol, Abdul Hakeem son of Amir Din armed with gun, Abdul Ghafoor son of Amir Din armed with Dang all. Chohan by caste, Muhammad Nawaz aforesaid and Allah Din son of Imam Din caste Chohan armed with a gun, all of them catching hold of my son Mazhar Hussain. No sooner Muhammad Siddique etc. did see us than Abdul Hakeem fired straight at my son Mazhar Hussain with his gun, which hit him in the left side of his chest. Then Allah Din and Muhammad Rafiq also fired at him with their gun and pistol, whereupon Mazhar Hussain fell down on the ground. When he had so fallen down, Muhammad Siddique accused gave him successive- hatchet blows. I, Riaz Ahmad and Mehr Allah Dewaya went forward in order to rescue Mazhar Hussain whereupon all the accused exhorted that if you came near, you would be done to death. Feeling frightened, we receded. My son Mazhar Hussain remained convulsing and expired in a shortwhile, within our sight. The accused left him there and went to the house of Muhammad Siddique. The alarm raised by us attracted Imam Bakhsh Arain etc. to the scene of occurrence. I have come to the police station with Riaz Ahmad, on his motor-cycle for reporting the matter. Mehr Allah Dewaya and others are present at the scene of occurrence. Muhammad Siddique, Muhammad Rafiq, Abdul Hakeem, Abdul Ghafoor and Allah Din accused have in conspiracy with Muhammad Nawaz, after sending for him through the latter, murdered my son Mazhar Hussain."
6. After recording this formal F.I.R. Exh.P.E.,-Madad Hussain, .Inspector P:W.14 who was then the S.H.O. at Police Station Khairpur Tamewali reached the spot, inspected the .dead body .of Mazhar Hussain, prepared-inquest report Exh. P.D. and injury statement Exh.P.D:/1. He then handed over the dead body to Muhammad Maroof (P.W.1) for escorting the same to the mortuary for post -mortem examination. He also prepared site plan without scale Exh P.M. He secured blood-stained earth from the spot and 'sealed it into a parcel vide memo. Exh. P.F. He also secured a pair of shoes EXh.P.4/1-2 which was taken into possession. By him vide memo. Exh. P.G.
7. It was Dr. Ashiq Ali, Medical Officer, R.H.C. Khairpur Tamewali (P.W.5) who conducted the post-mortem examination on the dead body of Mazhar Hussain deceased .on 2-9-1991 and found the following injuries on his person:--
(1) There was a circular entry wound on inner side of upper lip in its middle, opposite to upper inside, incisor tooth., The burning and tatooingwas present in connection with entry wound. There was an exit wound on outer side upper lip circular in shape and edges were everted.
(2) First incisor tooth was broken from its root and there was clotted blood in and. around the neck.
(3) Entry wound circular in shape on left side of chest 4 c.m. upward and, lateral left nipple burning and tatooing present.
(4) There was exit wound 1 c.m. x 1 c.m. in the inner, side of right thigh slightly upward. The edges were everted.
(5) There was entry wound 1/2 c.m. in diameter on upper edge of right knee burning and Wooing present. It was entry wound of-injury No.4.
(6) There was lacerated wound 1 and 1/2 c.m. x skin deep on outer side of left thigh 18 c. m. upward from left knee joint.
(7) Exit wound. 1.c.m. in diameter on inner side of left thigh 10 c.m. upward from left knee joint the edges were everted
(8) There was entry wound 1/2 c.m. in diameter of injury No.7. There was burning and tatooing present. It was situated on upper edge of left on its outer side.
(9) There was entry wound on left side of glans penis burning and tattooing present corresponding exit wound on left side of glans penis.
(10) There was entry wound 1 /2. c.m. in diameter on outer side of right heal burning and tatooing present. There was corresponding exit wound on inner side of right heel. It was 1 c.m. in diameter.
(11) Incised Wound 8 c.m. x 4 c.m. into bone deep on inner side of right upper arm 3 c.m. upward from right elbow, joint. The lower end of right humrus was fractured.
(12) there was incised wound 7 c.m. x 3 c.m. x muscle deep 3 c.m. upward and parallel to -injury- No. 11.
(13) Entry, wound 1/2 c. m. in diameter on dorsal surface of right elbow joint. Its exit was through injury No. 11.
(14). Incised wound 8 c.m. x 4 c.m. x bone deep on outer side of lower 1/3 of left lower leg. Both tibia and febula were fractured.
(15) Incised wound 7 c. m. x 3 c.m. x muscle, deep on outer side of left lower leg 3 c.m. upward to injury No.14.
Thorax:
Left 5th rib was fractured corresponding to- injury No.3. There was a circular bone on the interior surface of pleura corresponding to 4th intercostal due to injury. No3. There was a circular hole on its medial border just, opposite to pericordium due to injury No. 3. There was also circular hole on left side of the heart and pericordium. The pleoral and pariqordial cavity was full of blood due to injury No.3.
The oilier organs were intact.
On dissection hyoid bone was found intact.
Abdomen:
The right incisor tooth was broken due to injury No.3. Mouth contained clotted blood. There was circular hole in diaphragm and posterior surface of stomach. A pellet was found in small intestine. The bladder contained 200 cm. urine. There was an entry and exit wound on penis. The rest of the organs were healthy.
In his opinion, the death had occurred due, to injury No.3 which ruptured the heart muscles and caused severe haemorrhage which was sufficient to cause death. The injuries were ante-mortem. He added that the probable time between injuries and death was immediate and between death and post-mortem about 6, to 8 hours. Exh. P.C. is the correct carbon copy of his post-mortem examination report. Exh.P.C./1 and EXh.P.C./2 are the pictorial diagrams showing the location of the injuries. He also signed the inquest report Exh. P.D. and injury statement Exh.P.D./1.'Afterthe post-mortem examination, he handed over the last-worn clothes and sealed bottle containing pallets to the concerned police official.
8 It was Maroof P.W who produced last-worn clothes shirt P.1 Shalwar P.2 and Vest P.3 and one sealed phial containing pellets recovered from the dead body of Mazhar Hussain deceased to Sh. Muhammad Hussain, Inspector (P.W.14), which were taken into possession by the latter vide memo. Exh.P.A. Sh. Madad Hussain recorded the statements of P.Ws. under section 161, Cr.P.C. on the same day.
He arrested Muhammad Siddique, Abdul Ghafoor, Allah Din and Abdul Hakeem accused persons on 11-9-1991. Muhammad Nawaz accused was arrested on 14-9-1991 while Muhammad Rafiq accused was arrested by him on 15-9-1991. While in custody, Muhammad Siddique accused led to the recovery of blood-stained hatchet P.5 on 17-9-1991 which was sealed into a parcel and taken into possession vide recovery memo. Exh. P.H. On the same day, Abdul Ghafoor accused while in custody led to the recovery of Dang P.6 which was taken into possession vide recovery memo. Exh. P.1. These recoveries were witnessed by Nazir Hussain complainant (P.W.8) and Iqbal Shah P.W.11. On 18-9-1991, Allah Din accused while in custody led to the recovery of .12 bore gun P.7 which was taken into possession vide recovery memo. Exh. P.J. alongwith its licence which recovery was witnessed by Nazir Hussain P.W.8 and Muhammad Murad Shah P.W.12. On 21-9-1991, Muhammad Rafiq accused while in custody led to the recovery of .12 bore pistol P.9 which was taken into possession vide recovery memo. Exh. P.L. On the same day, Abdul Hakeem, accused while in custody led to the recovery of .12 bore gun without licence P.8 which was taken into possession vide recovery memo. Exh. P.K. Nazir Hussain and Allah Ditta P.W.8 and P.W.13 witnessed these recoveries.
9. To give a brief resume of the prosecution evidence except that of the eye-witnesses, Muhammad Maroof P.W.1 had accompanied the dead body to the mortuary and brought back the blood-stained clothes of the deceased alongwith one sealed phial given to him by the doctor which he delivered to the S-4I.O. Maqbool Hussain P.W.3 had while posted as Muharar Head Constable at Police Station, Khairpur on 2-9-1991 received one sealed parcel containing blood stained earth and sealed phial containing pellets recovered from the dead body of the deceased from the S.H.O. for keeping them in safe custody. Similarly on 17 9-1991, 18-9-1991 and 21-9-1991, he received sealed parcels of crime hatchet (blood-stained) .12 bore crime gun, .12 bore pistol and gun respectively for safe custody in the Malkhana. According to him, he delivered all these parcels to Abdul Ghaffar Constable No.736 P.W.2 on 6-10-1991 and the latter delivered them intact at the office of the Chemical Examiner and Forensic Science Laboratory, Lahore, respectively. Riaz Hussain Patwari P.W.4 had prepared the site plan Exh. P.B. on the direction of the police. Iqbal Shah P.W.11, Muhammad Murad Shah P.W.12 and Allah Ditta P.W.13 had witnessed the recoveries, as stated above.
Mst. Allah Wasai mother of the deceased was produced as P.W.6 for deposing that on the day of occurrence at about Isha prayer time, she, her sons Azhar Shah and Mazhar Shah and her daughter-in-law Mst. Kausar Bibi were sitting in the compound of their house when Muhammad Nawaz accused came there and knocked at the door. Both of her sons Azhar Shah and Mazhar Shah went to the door. Azhar Shah came back and on being asked told her that Muhammad Nawaz Khoja had taken Mazhar Shah to Khairpur in order to show him a picture. Her husband came back to the house late in the night. He asked about Mazhar Shah on which she told him that Muhammad Nawaz Khoja had taken him to Khairpur to show him a film. Mazhar Shah did not come back which worried her husband. Meanwhile Riaz Sipra P.W. came there on a motor cycle and took her husband. She did not know as to what happened thereafter. Azhar Hussain P.W.7 was also produced to corroborate the version of his mother about the departure of Mazhar Shah in the company of Nawaz Khoja for seeing film and not returning whereafter Riaz Sipra P.W. came to their house and his father went out with him in search of Mazhar Shah.
10. Nazir Hussain Shah P.W.8 (complainant), Riaz Ahmad P.W.9 and Allah Dewaya P.W.10 were examined to give the eye-witness account of the occurrence.
Nazir Hussain elaborated and reiterated the version of the F.I.R. with slight improvements and variation here and there. Riaz Ahmad P.W.9 also supported his version but failed to nominate Siddique, Abdul Hakeem accused and confined himself, with regard to this part of the prosecution story, to deposing that when Nawaz was not found at home, they (meaning thereby he alongwith Nazar Hussain Shah complainant and Mehr Allah Dewaya) proceeded to the house of Siddique and Rafiq accused for the search of Mazhar Hussain Shah and reaching near the house of Siddique and Rafiq, they saw Allah Din, Rafiq, Nawaz and Ghafoor accused when Allah Din was armed with a gun, Rafiq with pistol, Nawaz empty-handed and Ghafoor with Soti. According to him, Allah Din and Rafiq fired shots at Mazhar Hussain on receiving which he fell down and then Ghafoor gave Sod blow to Mazhar Hussain while in falling position. Allah Dewaya P.W.10, however, corroborated the version of Nazir Hussain Shah complainant P.W.8 on all material points.
11. In their statements under section 342, Cr.P.C. all the accused denied all the suggestions arising out of the prosecution evidence and in reply to the question as to why this case against them and why the witnesses had deposed against them, claimed that it was due to enmity with the complainant as well as with P.Ws. Everyone of them claimed that he had been falsely implicated at the instance of Sh. Abdur Rahim. It is interesting to Note that due care was not exercised in recording their statements. All the question r6mained the same and their wording was not changed with the change of the accused. Question No.6 reads as under:--
"Is it a fact that on the said date and time Abdul Hakeem fired with his gun hitting on the chest of Mazhar Hussain and at the same time Allah Din and Muhammad Rafiq fired shots at Mazhar Hussain and after he had fallen down, Muhammad Siddique inflicted hatchet blows on Mazhar Hussain causing his death in presence of eye-witnesses?
This question was put in the same form and words to all of them including Abdul Hakeem, Allah Ding Muhammad Rafiq and Muhammad Siddique. Similarly question No.7 which rends as under:--
"Is it a fact that Muhammad Siddique accused led to the recovery of blood-stained hatchet, while Abdul Hakeem and Allah Din got recovered guns and Muhammad Rafique got recovered carbine and Abdul Ghafoor accused led to the recovery of a Dang?"
Was put in the same form and wording to Muhammad Siddique, Abdul Hakeem, Allah Din, Muhammad Rafiq and Abdul Ghafoor and all of them replied that recoveries were fake and planted. They all denied that they had formed an unlawful assembly and had committed the murder of Mazhar 'Hussain in prosecution of the common object of that unlawful assembly of which they were members. They also denied that Mazhar Hussain deceased had been serving as a tractor driver with. Muhammad Siddique accused who had' dismissed him on the suspicion that Mazhar Hussain had developed illegal intimacy with Mst. Jamila daughter Muhammad Siddique. They all maintained that they were innocent and had been falsely implicated.
12. The learned counsel for the defence have raised the following pleas in support of their appeals for securing the acquittal of all the convicts/appellants:--
(i) That the F.I.R. was' lodged after preliminary investigation acid due deliberations and not at 2-30 a.m. as mentioned in the F.I.R. or-claimed by the prosecution. For this much reliance has, been placed on the statements of Azhar Hussain P.W.7, a real brother of the deceased Mazhar Hussain. According to him, they reached the police station alongwith the dead body at about 6-00 a.m. and it was there at the police station that his statement and the statement of his father were recorded. Nazir Hussain Shah also stated so towards the end of his cross-examination. According to him, his statement as well as the statement of Azhar Hussain were recorded at the police station when they took the dead body there. He added that they reached the police station at 6-00 a.m. alongwith the dead body.
(ii) That the police prepared the inquest report Exh. P.D. and injury statement Exh. P. D. / 1, after the post-mortem examination because the sequence of injuries given in the injury statement is the same as given in the post-mortem report which also indicates that F.1.R. was perhaps not recorded even up to 6-00 a.m.
(ii) That the prosecution has not been able to establish with cogent and convincing evidence that Muhammad Nawaz accused had deceitfully taken the deceased from his house to the house of Muhammad Siddique and that as such the prosecution story is improbable and intrinsically false.
(iv) That it cannot appeal to reason and no man of ordinary prudence can believe that the accused continued waiting for the P.Ws. to turn up and then to murder the deceased in the manner claimed by the prosecution. The fact that motor-cycle was not taken into possession- in order to establish that its light was in working order and that 'as such P.Ws. could be expected to see the accused doing away with the deceased in the manner claimed by them has also been pressed into service. The claim of the P.Ws. (Nos.8 and 10) that they had identified all the accused and Mazhar Hussain in the light of motor-cycle arid also in the light of an electric bulb has also been controverted by the defence in view of the statement of Sh. Madad Hussain, Investigating Officer (P.W.14) that he did not mention any electric light in the site plan of,…
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